Metlakatla Indian Community v. Egan

PETITIONER:Metlakatla Indian Community
RESPONDENT:Egan
LOCATION:Dry Docks at Reed, WV

DOCKET NO.: 326
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 363 US 555 (1960)
ARGUED: May 18, 1960
DECIDED: Jun 20, 1960

Facts of the case

Question

  • Oral Argument – May 18, 1960 (Part 2)
  • Audio Transcription for Oral Argument – May 18, 1960 (Part 2) in Metlakatla Indian Community v. Egan

    Audio Transcription for Oral Argument – May 18, 1960 (Part 1) in Metlakatla Indian Community v. Egan

    Earl Warren:

    Metlakatla Indian Community Annette Island Reserve, Appellant, versus Egan, Governor of Alaska, et al.

    And Number 27, Organized Village of — of Kake et al., Appellants, versus Egan, Governor of Alaska.

    Mr. Schifter.

    Richard Schifter:

    Mr. Chief Justice, may it please the Court.

    The question before the Court in these consolidated cases is the right of three Indian fishing communities in Alaska to maintain fish traps where the Federal Government has specifically authorized them to maintain these traps and where the State has made it a crime for them to do so.

    It is this conflict between state and federal jurisdiction, between the assertions of state and federal jurisdiction, which is the common question to the two dockets.

    There is another question as common to both dockets concerning jurisdiction.

    The two dockets differ on a question of the origin of Indian rights here asserted.

    And it will be my purpose to address myself first to the common questions and then to the specific question in Docket 326.

    As far as the general background is concerned, all three communities as I’ve indicated are fishing communities, their whole economy resting on fishing and canning.

    A key element in this economic setup of these communities are — is a maintenance fish traps.

    Fish traps constitute an efficient way of catching salmon which has proved inexpensive or less expensive in the long run in maintaining of boats.

    The right for that — of Metlakatla to maintain fish traps has been authorized by the Secretary of the Interior, for many years and most specifically, was authorized in 1959 and proposed regulations have been issued for the fishing season of 1960, which is about to start authorizing them once again to maintain these traps.

    Felix Frankfurter:

    What’s the aid of the legislation?

    Richard Schifter:

    Of the regulations?

    Felix Frankfurter:

    Of the legislation.

    Richard Schifter:

    Which legislation, Your Honor?

    Felix Frankfurter:

    Oh, what is forbidden by the State, by the —

    Richard Schifter:

    Oh, 1959, January 1959.

    Felix Frankfurter:

    Even the Secretary’s authorization?

    Richard Schifter:

    Came in April 1959, for the 1959 season.

    Felix Frankfurter:

    Well that’s directed against the — the — the prohibition?

    Richard Schifter:

    Oh, yes.

    Yes.

    It’s quite —

    Felix Frankfurter:

    (Voice Overlap) —

    Richard Schifter:

    It’s quite clear that as far as the Secretary of the Interior is concerned, he is aware of the state law in this matter and issued the regulations in 1959 and proposes to issue them once again in 1960.

    Potter Stewart:

    Are these regulations by the Secretary of the Interior, over the years, been issued annually?

    Richard Schifter:

    That’s right, Your Honor.

    Potter Stewart:

    For the fishing season each year?

    Richard Schifter:

    They were issued in 1959.

    Again in 1960, I believe that there was a general pattern over the years for issuing regulations authorizing the fish traps, a certain number of fish traps, but the specific decision as to how long they will be open and exactly which locations maybe operated, vary from year to year.

    Felix Frankfurter:

    When did this — when did this regulation begin?

    Richard Schifter:

    Justice Frankfurter —

    Felix Frankfurter:

    Exactly —

    Richard Schifter:

    — I believe in 1915 as far as Metlakatla is concerned, rather — recently, perhaps, 1958 and 1950 as far as the appellants in Docket 327 are concerned.

    William J. Brennan, Jr.:

    But before 1959, this is —

    Richard Schifter:

    Oh, yes.

    William J. Brennan, Jr.:

    Not perfectly for not regulations limited to authorizations to the Metlakatlans or Kake and the Angoon, were they?

    They were (Voice Overlap) —

    Richard Schifter:

    Mr. Justice Brennan, they were — these — these fish traps were operated for many years in the past and what happened in 1959 is the Secretary again did what he had been — done in the previous years.

    William J. Brennan, Jr.:

    Well but — were — were the regulations of the Secretary promulgated before 1959 applicable only to these appellants?

    Were they not general regulations?

    Richard Schifter:

    They were general regulations which specifically mentioned —

    William J. Brennan, Jr.:

    Mentioned these (Voice Overlap) —

    Richard Schifter:

    — mentioned the traps at this particular location, which will authorize the operator.

    William J. Brennan, Jr.:

    But here, we’re involved with only 11 —

    Richard Schifter:

    That’s right.

    William J. Brennan, Jr.:

    — fish traps.

    Richard Schifter:

    (Voice Overlap)

    William J. Brennan, Jr.:

    And before that, it used to be a couple hundred, wasn’t it?

    Richard Schifter:

    There were many more, yes.

    It was — there were many hundreds.

    William J. Brennan, Jr.:

    And was — as to these particular locations, were the number before 1959 more than 11, total?

    Richard Schifter:

    Yes, Mr. Justice Brennan.

    A total of 21 locations have been authorized over the years at Metlakatla and Kake and Angoon.

    In each instance though, each year, a decision is made as to exactly which of them should be operated.

    For example, Metlakatla has eight authorized locations which have been authorized for a good number of years.

    Last year, four of them were authorized to — to open.

    This year again, it is proposed to — to open only four of them incidentally, for — one of them is a different one from the one that was allowed to open last year.

    Earl Warren:

    Do you concede — concede the right of the Government to change those regulations at will?

    Richard Schifter:

    As far as Docket 326 is concerned, Mr. Chief Justice, yes.

    Felix Frankfurter:

    May I ask whether the territory of the last — whether the 1959 legislation was the first intervention by Alaska whether as including — it’s stated to the territory —

    Richard Schifter:

    Yes, Mr. Justice Frankfurter.

    Felix Frankfurter:

    — in the field in which he didn’t agree.

    Richard Schifter:

    That is the issue in the case.

    Their —

    Felix Frankfurter:

    Well, no.

    My question doesn’t concern the issue is.I want to know the historic fact —

    Richard Schifter:

    Yes.

    Felix Frankfurter:

    — that the first time that this prohibitory step was taken by Alaska.

    Richard Schifter:

    Yes, Your Honor.

    Felix Frankfurter:

    I know the State, it couldn’t have — if it wasn’t the State who couldn’t have acted in the State before, but as a territory, it didn’t —

    Richard Schifter:

    It —

    Felix Frankfurter:

    — if any local, territorial — didn’t take any local territorial step.

    Richard Schifter:

    No, Mr. Justice Frankfurter.

    And as a matter of fact, the State today claims only the right to do this because it is a State.

    Felix Frankfurter:

    Because it is a State.

    Richard Schifter:

    That’s right.

    As far as the —

    Felix Frankfurter:

    And, of course, it may have right to the State but it didn’t have as a territory —

    Richard Schifter:

    Well, the —

    Felix Frankfurter:

    (Voice Overlap) you say that, would you?

    Richard Schifter:

    That is the question.

    Felix Frankfurter:

    But I don’t mean as to this, but as to something, certainly.

    Richard Schifter:

    Oh, yes, yes.

    The — as I’ve indicated, the operation of the — the traps is vital to the — these Indian communities and it is for that reason that they have sought to enjoin the enforcement of the criminal laws of Alaska against them.

    While vital to the community, I should add and the record indicates that the total trap catch at Metlakatla constitutes less than 1% of the total catch of the entire State.

    There is a jurisdictional matter in this case which is a unique problem arising from the Statehood Act.

    The parties and the amicus have now agreed and fully concur in the fact that this Court has jurisdiction over the judgment, to review the judgment below.

    Richard Schifter:

    However, as the issue was raised in the argument on the State by Mr. Justice Brennan, I would like to discuss it briefly.

    The suits in question here were filed in June 1959 in the District Court for the State of Alaska which is the — was the holdover territorial court committed to continue to exist as long — until the State of Alaska set up its own judicial machinery.

    The judgment was entered on July 2nd, 1959.

    The notice of appeal was filed in this Court on August 6.

    There’s no question for that on these dates.

    The District Court for the State of Alaska was the only court operating in Alaska and was therefore, the highest court.

    The Alaska Supreme Court was constituted later.

    Its first members were appointed, first two members who are appointed on August 7th, the third member on September 1st, rules were promulgated on September 25th and the effective date of the rules was October 5th.

    The point here is that the Supreme Court of Alaska was not constituted as a court, did not start functioning until October the 5th.

    Judgment was entered on July 2nd.

    The notice of appeal filed on August 6th.

    We submit — and this is as — as I’ve indicated something on which all parties and the Solicitor General concur that under Section 1257 of the Judicial Code.

    The very wording would indicate that July 2nd should be the date as of which one would determine whether we have here a final judgment rendered by the highest court in which the decision could be held.

    And on July 2nd, the District Court for the State of Alaska was the highest court.

    Was the Court of Appeals now have jurisdiction to hear the appeal?

    Richard Schifter:

    The Supreme Court of Alaska?

    Yes.

    Richard Schifter:

    It would.

    It would.

    Richard Schifter:

    I should say we didn’t want to take any chances and the prognosis of appeal just for the sake of preserving the jurisdiction of that court.

    We —

    Earl Warren:

    If this was the highest court of the State, how would there be an appeal to the Court of Appeals?

    Richard Schifter:

    I believe, Mr. Justice Harlan meant the Supreme Court of Alaska?

    I did.

    I misspoke myself.

    Richard Schifter:

    The Supreme Court of Alaska.

    For the Supreme Court, as I’ve indicated, was constituted in October.

    And to — to be absolutely certain in protecting the rights of our clients, although we did not think that that Supreme Court had jurisdiction over the case, we did file notices of appeal.

    William J. Brennan, Jr.:

    Well, do you now concede that it does have jurisdiction in —

    Richard Schifter:

    No.

    Richard Schifter:

    No, Your Honor.

    William J. Brennan, Jr.:

    No.

    Richard Schifter:

    No.

    William J. Brennan, Jr.:

    (Voice Overlap) Justice Harlan that the Supreme Court of Alaska by reason of the —

    Richard Schifter:

    Oh —

    William J. Brennan, Jr.:

    — (Voice Overlap) taken there does have jurisdiction of the State.

    Richard Schifter:

    No.

    I’d like to make that clear.

    We believe that jurisdiction vested in this Court and not in the Supreme Court of Alaska, but we just wanted to be certain to cover our — our clients in all possibilities.

    Felix Frankfurter:

    You said the word of the statute make it clear?

    Richard Schifter:

    The wording of the statute, Your Honor, is —

    Felix Frankfurter:

    Well, what are the words?

    What is the wording?

    Richard Schifter:

    — that final judgment rendered by the highest courts in which — which a decision could be held are subject to review by this Court.

    Felix Frankfurter:

    Well, if you’re right that you could’ve gone to the Supreme Court of — you couldn’t now, could you’ve then, at no time can you go on the Supreme Court of — of —

    Richard Schifter:

    There was no Supreme Court of Alaska at the time.

    Felix Frankfurter:

    At — at what time?

    Richard Schifter:

    On July 2nd, when the judgment was rendered.

    Felix Frankfurter:

    I know, but if there was a Supreme Court within the appealable period of taking an appeal to the Supreme Court of Alaska, why wouldn’t that enable you to go there?

    Richard Schifter:

    The Supreme Court, Mr. Justice Frankfurter, was created afterwards after its —

    Felix Frankfurter:

    I understand it was created afterwards.

    But if it wasn’t and — if it wasn’t existent within a period — within which by the statutes of — of Alaska or the ruler of the Supreme Court, there would’ve been ample time to go from a District Court to — to the then newly created Supreme Court, what would have barred you on this — barred attempt — Alaska law to go there, although that wasn’t (Inaudible) at the time the decision was rendered?

    Richard Schifter:

    We are not barred, except if this Court, if a jurisdiction has vested in this Court.

    And it would — I believe, being Congress, Mr. Justice Frankfurter, for a jurisdiction to have vested in this Court and then that jurisdiction to be defeated by the subsequent creation of a state court.

    Felix Frankfurter:

    I can put the case the other way around, if you had neither going to the State Supreme Court and maybe this Court having jurisdiction.

    Richard Schifter:

    But this — may I please, Your Honor.

    Felix Frankfurter:

    If you — if — if there was a time before this Court came to act on its appeal to go to a — a still higher court than that which rendered the decision, then for me, at least, the question is raised whether they wanted an existence, the highest court other than the lower court, which rendered the decision.

    Richard Schifter:

    Mr. Justice Frankfurter, it would raise — I — I believe two questions would be — be raised by your approach.

    One is the actual —

    Felix Frankfurter:

    I don’t get it.

    Felix Frankfurter:

    I’m asking you.

    Richard Schifter:

    Well, the wording of Section 1257 in the first instance speaks of final judgments rendered by the highest court, being subject to review by this Court.

    Looking at the language of 1257, we’re dealing here with a judgment rendered by a highest court.

    This was a judgment rendered by a highest court, because in July 2nd when Judge Kelly in the District Court of Alaska, rendered the judgment.

    He did constitute the highest court, so the judgment in this case is the judgment of the highest court under the language of 1257, which under the statute, under which this Court operates does vest jurisdiction in the court.

    Felix Frankfurter:

    How much time did you have to come here?

    Is this a three-month or 90-day appeal?

    William J. Brennan, Jr.:

    No.

    I fixed the time in there.

    Felix Frankfurter:

    No, no, no.

    Richard Schifter:

    Yes.

    Mr. Justice Brennan shortened the time.

    Felix Frankfurter:

    Nom but under the statute — under the statute, how much time, did you have 90 days?

    Richard Schifter:

    90 days.

    Felix Frankfurter:

    All right.

    Now, if no appeal had been taken within — from the District Court to this Court and in the meantime, the Supreme Court had been established for Alaska, so that — and thereafter you filed an appeal here.

    That would raise in a security for me against the question whether at that time, the highest court or the District Court or the newly created Supreme Court.

    Richard Schifter:

    I think it would, Mr. Justice Frankfurter, but —

    Felix Frankfurter:

    Now, the question therefore, if — if you say yes to that, then I think you will have a little difficulty with me, at least, to say that because you came here before, but in the meantime, a highest court has created, it didn’t — it wasn’t the highest court when we come to consider the question.

    Earl Warren:

    Was the Supreme Court —

    Felix Frankfurter:

    I don’t want to (Voice Overlap) —

    Earl Warren:

    — was the Supreme Court established within 90 days of the judgment?

    Richard Schifter:

    No, Your Honor.

    Mr. Justice — Mr. Chief Justice.

    It was established in October 5th.

    A quick count gives me —

    Earl Warren:

    It’s over 90 days.

    Richard Schifter:

    — October 2nd.

    Felix Frankfurter:

    (Voice Overlap) —

    Earl Warren:

    Yes.

    Richard Schifter:

    I also want to submit the policy question.

    We filed our notice of appeal on August 6th and it was then that the jurisdiction of this Court vested and a subsequent creation of this — of subsequent creation of a higher court could actually then defeat the jurisdiction of this Court, once it had vested.

    Felix Frankfurter:

    Are there — do you happen to know what there — other type of litigation that raised this complication?

    Richard Schifter:

    This complication was raised in only one instance in which the Ninth Circuit, the Court of Appeals of the Ninth Circuit decided that it did not have jurisdiction over appeals from this District Court for the State of Alaska on the ground that the District Court was a state court and not a federal court.

    (Inaudible)

    Felix Frankfurter:

    The — the act of admissions said nothing about this matter, did it?

    Richard Schifter:

    The act of admission suggested that the Ninth — that the route — the proper route would be that through the Ninth Circuit and the —

    Felix Frankfurter:

    The Ninth Circuit rejected that.

    Richard Schifter:

    That’s right, Mr. Justice Frankfurter.

    This completes my discussion of the common issues in 326 and 327, and I would like to proceed with the specific problem in Docket 326.

    The Metlakatla Indian Community derives its rights from a reservation granted by Congress, by a statute in 1891.

    It was a reservation granted to them to hold and use the Annette Islands in Alaska, subject to regulations of the Secretary of the Interior.

    In the Alaska Pacific Fisheries case, this Court has defined the reservation as including the adjacent waters, the waters adjacent to the Annette Islands.

    And at that time in — in the United Pacific Fisheries case, enjoined a private company from trying to fish in what Congress had set aside for them as an exclusive fishery.

    The fishery — the reservation was further defined by Presidential Proclamation in 1916 to extend 3000 feet from the shoreline into the sea.

    To — and this, under the Presidential Proclamation, constitutes the exclusive fishery.

    If there ever was any question as to whether this Presidential Proclamation was authorized, it was put to rest by Congress in 1934, when Congress passed the statute which specifically ratified the Presidential Proclamation of 1916 and thereby, clearly fixed the definition of the reservation to extend 3000 feet from the shore.

    As I’ve indicated before, the Secretary of the Interior has authorized Metlakatla to maintain fish traps within this area reserved by Congress and these regulations were not questioned until Statehood.

    The query that this raises now is when the Statehood, in itself, swept away the provisions of the Act of 1891, the Proclamation of 1916 an the Act of 1934, all of which specifically authorized the Metlakatla to use these reservations subject to regulation by the Secretary of the Interior only.

    Potter Stewart:

    You don’t pretend that this — that these federal acts served to create a reservation within the — any technical meaning of that word do you, an Indian reservation.

    Richard Schifter:

    Mr. Justice Stewart, they do.

    I don’t know what you — how you would want to define the reservation now.

    If you mean whether it vests compensable rights to — is that your question?

    Potter Stewart:

    Yes, that and — whether they vested anything beyond mere fishing privileges.

    Richard Schifter:

    Well, the land itself.

    That includes the land too.

    Potter Stewart:

    The Annette Islands —

    Richard Schifter:

    The islands, and the Annette Islands maybe used if to the language of the 1891 statute is that these islands maybe held and used by the Indians.

    Now, the law also says until otherwise provided and that Congress otherwise provides, then I presume this use — is no longer authorized.

    Potter Stewart:

    And that the capitals are all Indians, are they?

    Richard Schifter:

    They are.

    Potter Stewart:

    Than are more — they’re — they’re not Eskimos or —

    Richard Schifter:

    Indians.

    Potter Stewart:

    Indians.

    Richard Schifter:

    It’s Tsimshian Indians.

    It is our position that the 1891 statute, having reserved this land until otherwise provided by law, would have remained in effect until a specific or — or must remain in effect until there is a specific repeal of the 1891 reservation.

    No repeal legislation has ever been enacted.

    On the contrary, the Alaska Statehood Act specifically, in Section 4 of that Act, preserves all the rights that Metlakatla has under this 1891 reservation, including its fishing rights.

    Under the Section 4, under the specific terms of Section 4, the State of Alaska disclaimed any right to interfere with the exercise by the Indians of any jurisdiction — of — of their right here and — and this is the language of Section 4, reserved these rights to the “absolute jurisdiction and control of the Congress.”

    Section 4 is therefore quite clear on this particular subject that the rights of the Indians to use these lands, subject only to regulations by the Secretary of the Interior, is continued beyond Statehood.

    Earl Warren:

    May I ask you, merely as a matter of interest to these Indians were indigenous to that part of Alaska?

    Richard Schifter:

    Mr. Chief Justice, they originated in British Columbia, Canada.

    They — they were a rather well-known community in British Columbia and were invited by the United States to come to Alaska in 1887.

    There was a religious division in a — in the particular group and the minister and Reverend Duncan, who in great fame in this particular area, moved out with his congregation and established on invitation, from the United States Government this new community on the Annette Islands, the Indians — and this is discussed by Mr. Justice Van Devanter, in the Alaska Pacific Fisheries case.

    They were given permission to look around in Alaska for a particular location where they would like to settle.

    They picked the Annette Islands and then they made a request to have this land set aside for them.

    There was then a question as to whether the President could do it without going to Congress and the Attorney General ruled that it could not and was there found that — that the Congress passed the statute of 1891 specifically setting this land and the fishery aside for the Metlakatla Indians.

    Earl Warren:

    And just where — just where I’d be in Annette Islands?

    Richard Schifter:

    They are in the — in Southeastern —

    Earl Warren:

    Southeastern —

    Richard Schifter:

    — Alaska and — and (Inaudible)

    Earl Warren:

    (Voice Overlap) —

    Felix Frankfurter:

    In numbers, how many are they on the islands?

    About —

    Richard Schifter:

    I believe a little over 1000.

    Felix Frankfurter:

    1000.(Voice Overlap) —

    Richard Schifter:

    As far as Metlakatla is concerned, I think a little over 1000.

    Felix Frankfurter:

    The whole community, 1000?

    Richard Schifter:

    I — I could check that in —

    Felix Frankfurter:

    Well, I don’t — no that’s for bad — for that magnitude is it?

    Richard Schifter:

    Yes.

    Felix Frankfurter:

    All right.

    Richard Schifter:

    The State, may it please the Court, has not really had any answer to Section 4 except to say number one, that it may constitute surplusage.

    And — and second, that it maybe — or it is unconstitutional and to the extent to which it is possible to determine what was meant below, it seems that the — that the decision below also is that Section 4 is unconstitutional.

    I should say that Section 4 is not mentioned in the opinion of the lower court at all.

    Felix Frankfurter:

    Suppose that —

    Richard Schifter:

    I would like to —

    Felix Frankfurter:

    Would you complete it?

    I don’t quite to understand that Section 4 of the — of the Constitution of Alaska —

    Richard Schifter:

    Section 4 of the Alaska Statehood Act, Mr. Justice Frankfurter, preserves — specifically preserves the jurisdiction —

    Felix Frankfurter:

    Where is that in your brief, what page?

    Richard Schifter:

    Page 3.

    It starts at the bottom of page 2.

    Felix Frankfurter:

    Yes.

    To mean four, on page 4 is that it?

    Richard Schifter:

    It starts on the bottom of page 2, statutes involved.

    Felix Frankfurter:

    Yes.

    Richard Schifter:

    Section 4, Alaska Statehood Act.

    Felix Frankfurter:

    And what is unconstitutional?

    Richard Schifter:

    The State suggests that this Section 4 is unconstitutional.

    Felix Frankfurter:

    Or is that Section 4 — if it’s — if it is Section 4, 04, no, that’s something else.

    Article 12 of the Constitution of the State of Alaska —

    Richard Schifter:

    That’s —

    Felix Frankfurter:

    — found on page 4 and 5, was that submitted to the Congress before Alaska was admitted?

    Richard Schifter:

    Mr. Justice Frankfurter, yes.

    The — Alaska came in under the so-called Tennessee Plan and the Constitution was adopted first and everything was set up to operate and then the Congress adopted the Alaska Statehood Act.

    Felix Frankfurter:

    But the Constitution was before Congress as a basis for it or —

    Richard Schifter:

    The admission.

    Felix Frankfurter:

    — with the admission?

    Richard Schifter:

    That’s right.

    Felix Frankfurter:

    Well handled in Section 4 of the Alaska Statehood Act, sort of fit in with Article 12 of the Constitution —

    Richard Schifter:

    It is the counterpart.

    That’s right Mr. Justice Frankfurter.

    They are counterparts.

    And this is typical in many of these Statehood Acts where Indian protection clause was written in.

    The State was required.

    And — and this — I — I would like to come that, Section 4 is nothing new.

    It has been in — as Indian protection clauses in State Constitutions since 1889 and —

    Felix Frankfurter:

    And if the suggestion that Section 4 tied to Article 12 is unconstitutional, because of the equal footing clause.

    Richard Schifter:

    There are two grounds asserted.

    One of them is the equal footing (Inaudible) and the other one is the suggestion that the Metlakatla Community may not be an Indian tribe.

    Felix Frankfurter:

    Well that wouldn’t ask — that sounds America whether or what it is, if deactivated —

    Richard Schifter:

    But —

    Felix Frankfurter:

    — anyone does.

    Richard Schifter:

    — it’s the equal footing doctrine.

    If I may just to cover the surplusage argument fist, first — it is first contrary to the canons of statutory construction that a — a section such as this, which had been considered by Congress for 11 years and which is in no way new, but has appeared in similar form as Indian protection clauses and State Constitution since 1889, which was the Admission Act for the Dakota, Wyoming and Montana, that this could possibly be surplusage.

    We have set forth in the brief, the discussion in the committee reports of Section 4, again over 11 years.

    Section 4 was in there because there were Indian raised — the questions raised by Indians about Alaska Statehood and this was specifically designed to — to attempt to remove Indian opposition to Statehood.

    What is the alleged to be surplusage?

    I don’t understand.

    The whole Section 4?

    Richard Schifter:

    That’s my understanding of the State’s argument.

    I’m sure Mr. Rader will be able to explain that.

    I understood from the brief that they suggest that this was surplusage.

    It’s cited in there – it’s stated in there in brief, the last page.

    Page 60 suggested — the State does not lose the power to regulate Senator (Inaudible) the State says, when he goes fishing because of his race as applied to Senator (Inaudible) this provision is either surplusage or is unconstitutional.

    Felix Frankfurter:

    May I ask whether, in Alaska, there are other conventional Indian reservations?

    I mean my conventional — I mean if nobody would argue about, they’re Indian reservations withdrawn from the authority of law of the States.

    Are there (Voice Overlap) —

    Richard Schifter:

    With regard —

    Felix Frankfurter:

    — having — having nothing to do with this problem.

    Richard Schifter:

    There —

    Felix Frankfurter:

    Other they Indian tribes?

    Richard Schifter:

    Just — there are some, none quite like Metlakatla.

    There are others that were reserved under the amendments to Wheeler-Howard Act.

    Felix Frankfurter:

    I mean this Section 4 would apply to — to Indian tribe is located and living on reservations having nothing to do with this particular fishing clause?

    Richard Schifter:

    That’s right.

    That’s right, it would.

    Felix Frankfurter:

    Now, do I understand that — that Alaska law plays no part at all on Annette Islands?

    Are they wholly out from — of — not — they’re only outside the authority of the State now?

    Richard Schifter:

    It does not — they are not.

    Alaska law was committed to come in under a 1957 or 1958 amendment to what is known as Public Law — against 1957, amendment to Public Law 280, of the 83rd Congress.

    In 1953, Congress passed the statute under which certain state jurisdiction was extended over reservations in certain name of states.

    Felix Frankfurter:

    (Voice Overlap) territory jurisdiction.

    Territory jurisdiction.

    Richard Schifter:

    It was — it was state jurisdiction in 1953 covering California.

    Felix Frankfurter:

    How could it be a State in 1953?

    Richard Schifter:

    I beg your pardon?

    It was a general — there was a —

    Felix Frankfurter:

    I don’t — I don’t understand.

    Richard Schifter:

    There was a —

    Felix Frankfurter:

    That clause in the State in 1953.

    Richard Schifter:

    There was a general statute passed in 1953, Mr. Justice Frankfurter, covering California, Minnesota — well, by five states in the United States.

    In 1957, this law was amended to add the territory of Alaska to provide that state law and order and civil jurisdiction or — or territorial line or the — and — and civil jurisdiction were extended over the Indian country, except that that law too, specifically provides that when it comes to hunting and fishing rights, that state law shall not extend to that or territorial law?

    Felix Frankfurter:

    And the — the 15 — the act of admission says nothing about that, or does that territorial law — is there a general provision about the continuation of territorial law was not changed?

    Richard Schifter:

    The — without making any specific provision, the Statehood Act would necessarily require that — that the State can exercise whatever authority the territory could, in matters other than fishing and hunting rights, so there’s — it assumes the same position the territory of Alaska had under this amendment to what is known as Public Law 280 of the 83rd Congress.

    But this does not extend to fishing and hunting rights and is specifically exempted by that 1953 law as amended and was again exempted by Section 4 of the Statehood Act.

    Felix Frankfurter:

    When is it — is it as broad as you put it that the State know so called police authority with reference — can it pass laws dealing with safety to life, although it’s connected with fishing?

    Richard Schifter:

    I would say the answer is no.

    The —

    Felix Frankfurter:

    The whole thing is withdrawn.

    Richard Schifter:

    Section 4 says there’s an absolute — words of Section 4, absolute jurisdiction and control of the United States.

    Absolute jurisdiction and control and that would encompass everything.

    I would now like to address myself to the equal footing doctrine argument raised by the State.

    It is suggested that Section 4 of the Alaska Statehood Act is unconstitutional under the equal footing doctrine citing the Pollard case.

    We submit that as was spelled out clearly by this Court in Coyle versus Smith, the meaning of the equal footing doctrine is that you cannot use a Statehood Act to exact from a State, a surrender of authority to the Federal Government in an area in which a Federal Government would not otherwise have jurisdiction under the Constitution of the United States.

    Here, we are not dealing with such a situation.

    We are dealing with a situation in — with a field of activity in which the Federal Government has been involved under the Constitution specifically under the Indian Commerce Clause, ever since the United States became an independent —

    That presupposes though that these are tribal Indians which I understand –-

    Richard Schifter:

    That’s my last point.

    Which has taken issue with — by the State?

    Richard Schifter:

    Yes.

    And we attempt to answer that in our reply brief.

    Assuming for the moment that these are tribal Indians, there is no question that the Indian Commerce Clause permits the United States to — to legislate in this area and that it was therefore, under the Indian Commerce Clause that the United States was able to place Section 4 in the Alaska Statehood Act, as it did with regard to similar sections in previous Statehood Acts.

    Congress has plenary authority over Indian affairs as was held by this Court in Lone Wolf versus Hitchcock.

    Therefore, the equal footing doctrine could not possibly have anything to do with this particular area of federal intervention.

    This makes me come to the last question just raised by Mr. Justice Harlan namely whether the Metlakatla Indian Community is an Indian tribe and whether possibly, the Federal Government is not permitted to enter into this area because this should not be constitute — not be denominated an Indian tribe.

    The answer to this is that it has been the repeatedly stated doctrine of this Court that the question of whether a particular community is an Indian tribe or not is one for the executive and for Congress and not for the judiciary.

    Felix Frankfurter:

    Does the statute say to that — talk about Indian tribes?

    Richard Schifter:

    It does not.

    Felix Frankfurter:

    So why don’t we stick to the language of the statute?

    Maybe it’s the same as Indian tribe, but I don’t find it in the statute.(Voice Overlap) —

    Richard Schifter:

    It speaks of natives and —

    Felix Frankfurter:

    (Voice Overlap) —

    Richard Schifter:

    — Indians, Eskimos et cetera.

    Mr. Justice Frankfurter, I would say — just say this that perhaps this question could be raised, the question of unconstitutionality of Section 4 in this regard with regard with to some other community, I don’t know.

    But with regard to this community, there’s no doubt that it has always been recognized as an Indian tribe and that this recognition would be binding on —

    Felix Frankfurter:

    They’re not natives are they?

    What do natives mean?

    You tell — you told us a little while ago you, you told the Chief Justice, an answer to your question, they came from —

    Richard Schifter:

    Canada.

    Felix Frankfurter:

    — from New Brunswick or from where?

    From Canada?

    Richard Schifter:

    That’s right.

    But what is there in the record to show they have been recognized as into this tribe?

    Richard Schifter:

    We have cited the constitution of the — of the tribe.

    The — they have been recognized by the — by the statutes itself.

    And that under the definition of — the definition of a — an Indian tribe as stated in the — in Cohen’s Handbook of Indian Affairs, one of possible criteria would be that Congress has recognized them as — as an Indian group and has given them some common property of rights.

    The Act of 1891 does just that.

    The Presidential Proclamation of 1916 again does just that and the Act of 1934 does that.

    Felix Frankfurter:

    Are they tribal government?

    Richard Schifter:

    Yes, Your Honor.

    They do have a constitution under the Wheeler-Howard Act, as amended and they have a charter under the Wheeler-Howard Act, as amended.

    They’re — prior to the time that they had a constitution which was only adopted in 1944, they had a tribal council or a community council under federal regulations, 25 CFR, pt.1 in — for many years constituted of just that regulations for the operation of the Metlakatla Community including their tribal or community government.

    It was superseded in 1944 by a constitution under the Wheeler-Howard Act as amended to — to include Alaska.

    Throughout all its dealings with the Metlakatla Indian Community, the United States has, at all times it is, the Congress and the Department of the Interior have recognized Metlakatla as an Indian community.

    They’ve called it a community.

    It’s in the — under the definitions here, the equivalent of a tribe and it’s quite clear that therefore, we are dealing with the exercise of an authority which is subject only to — which is not subject to judicial review.

    In this — in this community, are there — other — this — others than Indians living?

    Richard Schifter:

    Mr. Justice Harlan, I do not believe so.

    I believe that other than Tsimshian Indians have been admitted to membership, that is some Tlingit and Haida Indians, that you have this all over the rest of the United States where there’s a great deal of intermarriage taking place and the spouses of — let’s say Blackfeet Indians admitted to the Blackfoot tribe, if they belong to Laguna.

    This is — I happen to note this particular situation.

    Through intermarriage, you get all kinds of other Indians admitted into other tribes for not — of non-Indians.

    Let me reserve the rest of my time.

    Earl Warren:

    You may, Mr. Schifter.

    Mr. Cragun.

    John W. Cragun:

    May it please the Court.

    I represent the Organized Village of Kake in the Angoon Community Association.

    Each of them played to them as so that they were of the Tlingit tribe.

    The allegations of the complaints are rather spared on many of the issues which have become acute in this course — Court as a result of the State’s brief, Governor Egan’s brief.

    John W. Cragun:

    I have however, because of assertions in that brief, that these are mere local state villages or first class cities did obtain from the Department of Interior, as many copies as I could get of the constitution and bylaws in the corporate charter of Kake (Inaudible) and of Angoon Community Association.

    I’ve handed to the clerk for distribution to the judges, a copy of the constitution and bylaws and corporate charter of Kake, which bears out what was said in their respective complaints that they are organized under federal law.

    I — I was able to get only one set of the constitution and bylaws and corporate charter of Angoon that has been lodged with the clerk.

    Felix Frankfurter:

    What is the population of — of your — of your tribe in Kake?

    John W. Cragun:

    Kake alleged that it was composed of 400 individuals.

    Angoon alleged that it was composed of 306.

    The —

    Earl Warren:

    What is the background of those tribes?

    Did they — are they natives there or did they also come from —

    John W. Cragun:

    No, these are natives.

    These are natives whose on — who are on their home ground where they were before the white men first showed up in Alaska, so far as the best of information gives us.

    There has been an instructive opinion delivered by the Court of Claims since this case lodged in this Court.

    It’s rather heavily relied upon by the State.

    It’s not yet been printed in the reports of the Court of Claims, therefore, the — the federal supplement grant does not contain the extensive findings of fact which the court appended to its opinion, but even the print in the — in federal supplement, gives a great deal of information and background of this on a map on which you can locate these two villages as they exist today and have existed since the time the white man first came to Alaska.

    Felix Frankfurter:

    Just to the matter of curiosity, Mr. Cragun, has their number been diminishing over this decade?

    John W. Cragun:

    I have no reliable information on that, sir.

    The numbers of Indians generally in this country and I believe it’s true that Alaska, did received for a while —

    Felix Frankfurter:

    Up to the 19 — around 1915, up to that time.

    John W. Cragun:

    That’s correct.

    And since then —

    William O. Douglas:

    It depends on how you define Indian, doesn’t it?

    John W. Cragun:

    It does depend upon how you define Indian as I’m using it here.

    I would use the word and does this Court has used it on occasion in the same way the census taker would.

    How is a man regarded by the community in which he lives without regard to his racial background?

    William O. Douglas:

    Now, under some of our reservation, the — a person as Indian if he had one-sixty fourth of Indian blood in him.

    John W. Cragun:

    That’s correct, sir.

    I, myself, have known a man who was three-quarters white man biologically, but he was a full blood from the standpoint of tribal relations.

    He couldn’t speak English until he was pass 21.

    His father and his grandfather happened to be United States Army man.q

    It’s perfectly true.

    John W. Cragun:

    Biologically, they are not necessarily pure Indians.

    They can be very largely Caucasoid.

    But the community in which he lives knows whether he’s a white man or an Indian.

    Felix Frankfurter:

    But a part in those qualifications.

    It is a fact isn’t it, to see if I have students of Indian life, that they did decrease in numbers until about 1916, something like that.

    John W. Cragun:

    I believe that is a matter which is well borne out by census statistics, sir.

    Earl Warren:

    And guess just what part of Alaska are these villages in — Mr. Cragun.

    John W. Cragun:

    Well, as in the case of Metlakatla, which was carved out in the lands of the Tlingit Indians, a different clan from the two clans which here are involved.

    These lands are lie pretty close to Seattle by the side of the rest of Alaska.

    It’s in the southeast portion of Alaska.

    They lie southwest of Juno.

    They’re on the inland passages, the islands in from the ocean itself.

    These are people who have been gaining a living in very large measure from fish since time in memorial.

    They still are.

    They finally were provided with more modern equipment by the United States.

    The complaints alleged that they’re heavily in debt to the United States for this equipment too.

    It includes what is necessary to tend their fish traps, to build and tend their fish traps, because I do understand they’re built annually.

    They had been being built when this case arose and as soon as they were put in place, then the actions took place which precipitated (Voice Overlap) —

    William O. Douglas:

    You didn’t give us the Court of Claims citation for federal supplement.

    John W. Cragun:

    Mr. Justice Douglas, the — in the federal supplement, the Tlingit and Haida Indians of Alaska is 177 F.Supp.452.

    William O. Douglas:

    Thank you.

    John W. Cragun:

    The opinion of the Court of Claims is number 47,900 decided October 7th, 1959 and appears in a 122-page pamphlet with many attended maps.

    Felix Frankfurter:

    Mr. Cragun, may I cover you, before you go into these (Inaudible) they didn’t have the time or didn’t take it.

    Would you mind telling us what the — what the policy configurations are that are operating in this case?

    Why is the State — what are the State’s reason for this enactment?

    And others, what’s the effect upon the community that settle this?

    John W. Cragun:

    Yes, sir.

    I don’t —

    Felix Frankfurter:

    (Voice Overlap) situation, what is it?

    Why is the State taking this measure evident as a great deal of feeding on both sides and not sure enough?

    John W. Cragun:

    They —

    Felix Frankfurter:

    (Voice Overlap) all about?

    John W. Cragun:

    The Governor’s brief is (Inaudible) with the reasons for the state action.

    The fact is that over a number of years as a political fact of life in Alaska, there has been terrific resentment of trap fishing.

    And this is a matter of popular demand than the population might say in Alaska.

    It takes a good deal or capital to run a modern big fish trap.

    To be sure these people fished with a trap before the white man first showed up and marked the traps we’re talking about now.

    It takes a good deal of capital.

    It’s extremely efficient.

    It also can be regulated with great care to make sure that the proper runs reach upstairs, but not every man can indulge it.

    There are a limited number of trap sites.

    He, who gets there first, under the law of Alaska, were told by appellees’ brief, would have the prior right.

    Here is a matter of spreading out the use so that everyone can take part of it.

    I might think it’s simply a matter of —

    William O. Douglas:

    It can be — can very destructive too some species, can it?

    John W. Cragun:

    Mr. Justice, I understand my best information and there’s a letter appended to Mr. Schifter’s brief from the Secretary of the Interior, which rather disputes that.

    I understand the conservationists are hardly in favor fish traps.

    Their — they can be controlled absolutely to make certain that the runs of fish go upstream.

    You can’t control it if every man can hire a seine, can get out there and seine up the last fish.

    Also, they don’t destroy fish.

    They — the fish are kept alive and uninjured to the very time they’re processed.

    It is not my understanding that there is any conservation issue in a matter of this kind.

    There is — to answer Mr. Justice Frankfurter, a decided political issue.

    The State wants to close them up and it wants to close them up in the worst possible way.

    These people want to maintain their traps as their only way of paying off their debts and making their livelihood.

    The whole village is employed.

    Felix Frankfurter:

    When you say political, what do you mean by that?

    Not partying issue, this isn’t a party issue, would that (Voice Overlap) —

    John W. Cragun:

    Well, no.

    I — I don’t mean party.

    John W. Cragun:

    I mean the — the demand of the electorate —

    William O. Douglas:

    (Voice Overlap) —

    John W. Cragun:

    — that this be done.

    Now, I may say that there are statements in the brief of appellee in that regard which are contrary to my information.

    I’m sorry.

    I’ve never been to Alaska.

    I haven’t seen this and a lot of things I can’t vouch for.

    But it’s my clear of understanding that it is not true that these people, themselves, want to abolish fish traps.

    They can do so, I think, without question, but as the complaints alleged the whole community depends on.

    The women who come in and fillet and otherwise process and can the fish, the men who man the boats and crafts, they’re all concerned with it and need and want it.

    I think the complaints themselves speak for the native attitude.

    I didn’t want, by what I said, to say that I associated myself with all what was said on this subject in the brief of appellee.

    As —

    Potter Stewart:

    You’re speaking, I gather, particularly of the boats that — that retells us we’re taking them in these communities in favored abolition of fish traps?

    John W. Cragun:

    Yes, sir.

    That’s correct.

    There has been some correspondents with the Secretary of the Interior arising since this Court postponed the merits with regard to certain action in which these people were said to have joined by the Alaska Native Brotherhood calling upon the Secretary to abolish fish traps.

    I did look into that and if the report was totally false and Secretary said that he had looked into it and found the same thing.

    It simply isn’t true.

    These people need and want to save their livelihood in the shape of their fish traps.

    Have I fully answered, Mr. Justice Frankfurter?

    Felix Frankfurter:

    It’s done.

    I always feel better as I put some flesh on the legal bones.

    John W. Cragun:

    Well, I only regret that this complaint was drafted in such a hurry and before the case shaped up in the Supreme Court of the United States, because I’m certain it should have put a great deal more flesh on it.

    The briefs of both the State and the United States take a view that I wanted to distinguish in which have been the subject of a reply brief, filed here, a night for it last.

    On whether we have any rights at all, whether Kake and Angoon have any rights.

    The State says, “Well if you read Section 4 of the Statehood Act, it reserves property and it reserves jurisdiction over property including fishing rights of Indians, only if you got rights.”

    And the Solicitor General reads that to say “Well that means that Congress has reserved to itself the question whether it will ever recognize rights.”

    The State says, “These people have no rights.”

    I’ve been to some pains on that.

    John W. Cragun:

    And because of a question asked to Mr. Schifter whether these were reservations in the technical sense, I should like to address myself a little further to it.

    Actually, Indian rights do not depend upon reservations.

    This Court, itself, repeatedly has recognized the rights of Indians quite apart from reservations.

    In United States as guardian of the Walapai Indians against the Santa Fe Pacific Railroad Company, an opinion of Mr. Justice Douglas and as I recall for a unanimous court.

    The court, by injunction, protected mere rights of aboriginal use in occupancy, aboriginal possession.

    It didn’t do that on the theory that they didn’t have a right to tell them unless Congress established a reservation, but on the ground that there were rights there which were to be protected under federal law unless to be sure Congress does a way with it.

    Now, I would not like my understanding of one answer that Mr. Schifter gave to be associated with my possession either.

    I don’t think that the United States can take those aboriginal rights as a matter which does not create in the Indians some right of compensation.

    Felix Frankfurter:

    But the ultimate source of treaties between —

    John W. Cragun:

    No, there is no treaty so far as —

    Felix Frankfurter:

    I mean in this case.

    John W. Cragun:

    No, not in this case.

    Felix Frankfurter:

    No, I mean in this case, in the case you adverted a while ago.

    John W. Cragun:

    No, sir.

    In any Indian case whatever, this Court has ruled very flatly in Lone Wolf against Hitchcock, which was cited by Mr. Schifter, that — that’s a political question.

    It has really been the Achilles heel of Indian tribes in this country.

    The United States goes out and makes treaties with them.

    The United States turns around and with no regard for that treaty, takes their land.

    The Indian comes into Court and said I want to stop in taking if they agreed not to and the Court says no.

    That’s a political question.

    You shall have to appeal to the political departments of the Government.

    Lone Wolf against Hitchcock is flatly in point there.

    Now, on the other hand, nobody else can take aboriginal lands from the Indian, if the United States will protect so held in Lane against Pueblo of Santa Rosa, by this Court.

    There, the Indians came to Court to enjoin a private person coming on their lands, not the United States.

    But the trouble with Indian rights is not that it isn’t a right because there isn’t a reservation.

    It’s because there can be no enforcement of that right, if Congress says something else.

    That the political department said, “We abolish any tribal or clan property in these Indians and you don’t get anything for it.”

    There simply is no question that Congress has the power to do that.

    I merely wanted to draw the distinction between the power, which is a political power not subject to review by this Court and the right — the right does exist and were Congress to waive away the political overtones to it, this Court has and can see that compensation or protection has afforded those rights.

    Earl Warren:

    Well, Mr. Cragun, is it necessary in this case for us to reach the question of the rights of — of these Indians vis-a-vis the Government?

    John W. Cragun:

    I believe not.

    Earl Warren:

    Did anybody contend that we —

    John W. Cragun:

    I think that Alaska almost contends that, though I would —

    Earl Warren:

    (Voice Overlap) done.

    Well, then —

    John W. Cragun:

    I would like appellee to address this —

    Earl Warren:

    I won’t — I won’t bother you to argument.

    I just —

    John W. Cragun:

    They assert there are no rights, hence, if you reserve in Section 4 of the rights of Indians.

    You’ll reserve nothing.

    And that is —

    Earl Warren:

    Yes.

    John W. Cragun:

    — the reading I give of their position.

    Earl Warren:

    Yes.

    John W. Cragun:

    I do believe that those rights do exist here and they cannot or ought not be mistaken by virtue of the fact that they are political rights and raise political problems.

    They’re also, from time to time, has been a discussion of two sections of the Statehood Act in conjunction with one another to which I would like to turn briefly.

    Section 4 now, which I — to which I have referred and which appears at page 5 of our separate appendix, makes it a compact with the United States and the State of Alaska to disclaim land or other property including fishing rights, that right or title to which maybe held by Indians, Eskimos or Aleuts, hereinafter called natives, or is held by the United States in trust with them.

    Now, we move to Section 6 which is on the next page, page 6, there is provided there that the — the first proviso near the bottom of the page that “The administration and management of fish and wildlife shall be retained by the Federal Government under existing laws until 90 days after the Secretary of the Interior certifies to Congress that the State was in a position to take over.”

    Secretary did so certify, the State did take over, January of this year and the point was raised at some length and a motion to dismiss that that would make this case moot because asserted — assuredly, the State now has jurisdiction.

    I believe it’s impossible to read those statutes, one, as nullifying the other.

    The disclaimer is not until the State jurisdiction of ordinary fishing game department duties which Section 6 is talking about where the Secretary enforces regulation and ceased to the policing of Alaskan Fish and Game until the State’s able to take over.

    This disclaimer is of all lands and properties in the — either held by the Indians or by the United States entrust for them and then goes on to other clause by which it is agreed that they shall remain under the absolute jurisdiction and control of the United States until disposed of under its authority and I feel that its plain on that that the — Section 6 did not take away what had just been reserved in Section 4.

    It’s talking about something deeper, the broad reach of Fish and Game duties.

    Felix Frankfurter:

    Mr. Cragun, as in state admission act, says the word — as the phrase — as a compact, is that a — is that the conventional phrase?

    John W. Cragun:

    Yes, sir.

    And that’s been used in — in a number of the Statehood Acts, as a compact.

    And I may say that some more reservations of the rights of Indians have been made time and again in state admission rights.

    Felix Frankfurter:

    Or just calling about the phrase that they should use or a phrase that has a constitutional meaning in a different sense.

    John W. Cragun:

    Well —

    Felix Frankfurter:

    Can you tell me that’s conventional?

    John W. Cragun:

    I believe it’s conventional.

    I have seen it in others in the course of reading the cases on the effect of the reservation.

    And sometimes it’s been called in the statute, a solemn compact.

    I think that was the case with Coyle Oklahoma where they solemnly agreed that the capital should not be removed from (Inaudible) for a number of years.

    Thank you, Mr. Chief Justice.

    Earl Warren:

    Mr. Calhoun.

    John D. Calhoun:

    Mr. Chief Justice, may it please the Court.

    The United States appears in this proceeding as amicus curiae.

    It appears in support of the position of appellants.

    It asks that the judgment below be reversed.

    I would like at the outset of this argument to comment briefly on the jurisdictional question that this Court reserved in its order of December 7th, setting this case for argument.

    I would agree with Mr. Schifter, that the brief most recently filed by the State of Alaska has rather much resolved all the questions that may have existed in December.

    I would, however, like to put the position of the Government on this jurisdictional point, because the Government is satisfied that in this case, the United States Supreme Court does have jurisdiction.

    The brief for Alaska, adopting the position that the United States took last July, when it was asked to comment upon this case, concedes that under the Statehood Act and under the existing laws of Alaska, the court below was created as a state court.

    Moreover, that the court below was the highest court of the State of Alaska, the time of judgment below was entered, at the time the, restraining order was requested and granted by this Court.

    At the time the appeals to this Court were perfected and more importantly, throughout the 90-day period in which the parties to this action had to come to this Court if they were invoked the jurisdiction of this Court.

    There can be no question that there was drawn into question below, the validity of state statutes in the ground that they were repugnant to statutes and laws of the United States.

    And that the court below resolved those questions in favor of the state statutes.

    Every element necessary to this Court’s jurisdiction under Section 1257 Title 28 has been made.

    Potter Stewart:

    Under the state law of Alaska, how long a period does the appellant have in which to appeal from the — from this State trial court to — to the Supreme Court of Alaska?

    John D. Calhoun:

    My recollection is, Your Honor, that there are 60 days.

    Now, though the rule, the pertinent rule here is Rule 54 (b) of the rules of the Supreme Court of the State of Alaska.

    Under that rule, Rule 54 (b), the Supreme Court of Alaska permitted anybody who — any — any case which a judgment had been entered prior to the effective date to file on the effective date as if that was the date of the entry of judgment.

    And the Supreme Court of Alaska has, in fact, heard some appeals from cases decided by the interim court.

    But the point was these people could not have been in the Supreme Court at anytime, at anytime under those rules.

    And I think that’s conclusive on the point of jurisdiction.

    You mean, if they haven’t come here, they would’ve had no right of review in the Supreme Court of Alaska?

    John D. Calhoun:

    Yes.

    They would’ve had a right of review under what they knew as of October 5th.

    Yes, that’s what I meant.

    John D. Calhoun:

    But — but they didn’t know that that would be the case for a certainty on September 30th, when the (Voice Overlap) —

    In other words —

    John D. Calhoun:

    — they expired.

    — their rights came in — their appellate rights came in (Voice Overlap) —

    John D. Calhoun:

    To be —

    — they were already here in this Court, that’s your point.

    John D. Calhoun:

    Yes, Your Honor.

    William J. Brennan, Jr.:

    This — this was a matter of the Supreme Court rule rather than a statute, this delayed appeal this — this permission to extend the time in which to appeal?

    John D. Calhoun:

    Yes.

    Under Rule 54 (b), that rule is set forth in full at page 22 of the red appendix filed for appellants, Kake and Angoon.

    Now, I should like to turn to the — as I have indicated, the Government agrees with the basic position of the appellants in this case.

    It does however reach that result by somewhat different route and they have tried — disagrees with certain assumptions and assertions they have made.

    That I will have occasion later in the course of this argument to comment on those differences that we have with the appellants, indeed, to comment on in a difference that the United States and the Department of Justice has so far as the Secretary of the Interior.

    But for the moment, I would like —

    Felix Frankfurter:

    (Voice Overlap) of him?

    Is it insofar, you mean as with him?

    John D. Calhoun:

    Yes.

    Our position is not —

    Felix Frankfurter:

    That is (Voice Overlap) —

    John D. Calhoun:

    — precisely that of the Department of Interior.

    And I would like to make that clear to the Court.

    For the moment, however, I would like to —

    Felix Frankfurter:

    State with your position —

    John D. Calhoun:

    — state my position first.

    It’s the position of the United States that Section 4 of the Statehood Act held in status quo, federal right in and control over all Indian fishing rights in the State of Alaska.

    Position — this position is borne out both by the language of the statute and by its legislative history.

    Now, the precise terms of Section 4 from which the Government relies and they are set forth in our brief at page 13 are these, they’re very short.

    “Lands or other property including fishing rights, the right or title to which maybe held by said natives or is held by the United States in trust for said natives, shall be and remain under the absolute jurisdiction and control of the United States until disposed of under its authority.”

    There’s the statutory language upon which we relied to give us absolute jurisdiction and control over Indian fishing rights in Alaska.

    Now, it is the position of the United States that the phrase, “fishing rights,” of which Section 4 speaks, are not true property rights, legal rights, proprietary interest, the taking of which would create a duty of compensation under the Fifth Amendment.

    John D. Calhoun:

    Rather, we use rights and rights were used in that statute for our intention, in a broader sense, in the sense of fishing privileges.

    Now, in this very area, its not — it’s not uncommon to speak of nonproprietary interests as rights.

    I might point out that this Court in the Tee-Hit-Ton case, a case decided just before — shortly before the language in here was affirmed up as — as to be permanently in the Statehood Act.

    This Court had the occasion to say in Tee-Hit-Ton, speaking of Indian title which is a — a privilege based on aboriginal use and possession.

    This is not a property right, but amounts to a right of occupancy which the sovereign grants and protects against intrusion by third parties of which right of occupancy maybe terminated in such lands fully disposed of by the sovereign itself without any legally enforceable obligations to compensate the Indian.

    Tee-Hit-Ton is a case, when you read the legislative history of a Statehood Act that was right in the forefront of the minds of the legislators.

    They knew when they spoke of rights in Alaska, in Indians, that they weren’t talking about compensable rights.

    Now, as I have said, our construction phrase, “fishing rights,” accords with congressional intent.

    Let me comment for a moment on some of that legislative history.

    The phrase including fishing rights was put in to Alaska Statehood Act in the Senate, in the 81st Congress and the report of the committee that framed this — of this section, reads as follows.

    I’m speaking of the bill that it provides, “For transfer to the State of highly important Alaskan fisheries and wildlife, except those which are subject to international agreement or are included within the reserved native rights.”

    In the 84th Congress, the Congress before the Alaska Statehood Act was enacted, the House report on the bill, the same language had survived through the 81st and on into the 84th Congress, had this to say, “It is provided that no attempt will be made to deal with the legal merits of the indigenous rights, but to leave the matter in status quo for either further legislative action or judicial determination.”

    Those very words were picked up in the House report in the 85th Congress, the Congress that enacted the Alaska Statehood Bill.

    The substance of those words were picked up in the report of the Senate Committee in the 85th Congress that voted out the Alaska Statehood.

    Felix Frankfurter:

    Would you mind reading those words, Mr. Calhoun?

    John D. Calhoun:

    It is provided from the — it is provided that no attempt would be made to deal with the legal merits of the indigenous right native — native rights —

    Felix Frankfurter:

    Yes, yes.

    John D. Calhoun:

    — but to leave the matter in status quo for either further legislative action or judicial determination.

    Felix Frankfurter:

    That means we have to decide this case.

    John D. Calhoun:

    Yes.

    And until Congress speaks the Statehood Act keeps in status quo of Indian fishing privileges too.

    Earl Warren:

    Well, do we reach that — do we reach that question in this case, Mr. Calhoun or — or should we not obey that same admonition to leave it to a proper case?

    John D. Calhoun:

    It’s certainly the position of the Government that you need not reach it in this case —

    Earl Warren:

    (Voice Overlap) —

    John D. Calhoun:

    — to the extent that — that Alaska urges that property rights, as set forth in the Statehood Act mean that they have to be vested proprietary interests.

    That question is thrust upon you, but I cannot — we think that’s a very tortured construction of — of the Statehood Act, because the Congress with the Tee-Hit-Ton case before it knew there were no such Indian rights in Alaska.

    It would’ve been speaking an absurdity, if it — if it has intended that those —

    Felix Frankfurter:

    I — I don’t understand why you said we don’t have to face this question.

    We have to face the question whether including fishing rights, that fishing rights and for instance, gains its meaning or is colored by the proceeding word, any lands or other property.

    And those are terms that — that may well be argued.

    Felix Frankfurter:

    I doubt this is argued, mean contensible interests.

    John D. Calhoun:

    I had other (Voice Overlap) —

    Felix Frankfurter:

    Don’t we have to face that?

    I just want to know whether we don’t have face that question, and if so, why not?

    John D. Calhoun:

    No.

    Well, you will notice that in the Statehood Act, it speaks of land or property made the right entitled maybe in the Indians or is in the United States.

    Now, I — if it is necessary, if the Court in — in treating this property, will find it necessary to find it proprietary interest on which the Indians fishing privilege may fight, I suggest that the United States retained in itself sufficient proprietary interests to give the Indian fishing privilege meaning.

    Felix Frankfurter:

    I’m not suggesting we must find that.

    We may agree with your conclusion that is what it means.

    But I don’t quite understand why I don’t have to face determination of what it does mean.

    Earl Warren:

    Was it litigated below as between you and the Indians —

    John D. Calhoun:

    No, most certainly not.

    Earl Warren:

    — as to whether they had any property rights?

    John D. Calhoun:

    No.

    Not, as against the United States —

    Earl Warren:

    Yes, that’s what I mean.

    John D. Calhoun:

    — certainly not.

    Yes, I — I thought it was a — the Fifth Amendment —

    Earl Warren:

    Yes.

    John D. Calhoun:

    — question that you had —

    Felix Frankfurter:

    Well, if that’s it — the question that the — that the United States has any — any property interest.

    John D. Calhoun:

    Yes.

    Well, I — even — even that point I — I suggest need not be reached on this case.

    But if, if in conceptualizing how the Indian fishing privilege for which we urge or which we urge can be maybe meaningful, it’s necessary to find a proprietary interest, then I suggest that it’s an interest in the United States for the benefit of the Indians.

    Felix Frankfurter:

    You’re standing here to say and say that the right of Alaska as a State concern with state power is limited by the reservation of Section 4, is that right?

    John D. Calhoun:

    Indeed, yes.

    Felix Frankfurter:

    Is that right?

    John D. Calhoun:

    That is correct.

    Felix Frankfurter:

    Therefore, don’t I have to construe what it is that will reserve?

    John D. Calhoun:

    You do.

    Felix Frankfurter:

    Because that right — I don’t see how I’m relieved of the responsibility of — in which you want to relieve me.

    Earl Warren:

    But the reservation is there whether it belongs to the Government or it belongs to the Indians, isn’t it?

    John D. Calhoun:

    My answer, Mr. Justice Frankfurter —

    Felix Frankfurter:

    But you can — what the reservation is about, what it is that it’s reserved.

    John D. Calhoun:

    My — my answer, Mr. Justice Frankfurter, was only addressed to the proposition that anything that you decide here will not be binding on the United States with respect to the compensability of these interests.

    Felix Frankfurter:

    Oh, I’ve — I’d —

    Earl Warren:

    But either one is binding on the Indians either, do you?

    John D. Calhoun:

    That is correct.

    Earl Warren:

    Yes.

    Well, that’s all I was trying to get at.

    Felix Frankfurter:

    We’ve got not problem of eminent domain here.

    He’s got a problem of state power, clearly has been limited by the limit — by the regular basis in the act of admission.

    But to answer that, one has to decide what (Inaudible) to deserve.

    Or secondly, what could be what he deserves.

    John D. Calhoun:

    I won’t agree with them.

    Felix Frankfurter:

    All right.

    John D. Calhoun:

    I would like to turn for a moment, if I may, to the proposition set forth in the — in the brief of Alaska.

    As we read that brief, Alaska disagrees with us in two principal particulars.

    The first urges that the United States has misconstrued Section 4 of the Statehood Act.

    Secondly, that Section 4 is unconstitutional.

    Mr. Schifter, alluding to the two theories of unconstitutionality, first that the commerce power Article — Article I, Section A Clause 3, does not reach the type of — of regulation that Congress is attempting here and secondly, that if it did, the equal footing doctrine would bar that — the equal footing doctrine also bars the exercise of the power to —

    Felix Frankfurter:

    Isn’t there another argument namely that granting power of the Federal Government, granting the reservation as what you say it is, does that deny or withdraw the reserve power to the State, loosely called the police power, I mean this — the principal underscore of the police powers.

    John D. Calhoun:

    There — there, Your Honor, I can only rely on — on the fact that the statute speaks in terms of absolute jurisdiction and control and I cannot think of words more absolute than that.

    And secondly, that throughout the — throughout the legislative history of this enactment, you cannot read it without feeling that it mattered in everything it was done, is a — is the thought that the United States would keep full supervision over the fishing of natives in Alaskan waters.

    Felix Frankfurter:

    And to — to put a concrete case, I take that you would say that Alaska couldn’t possibly, couldn’t legally or would not have power to pass a statute saying that no children below the age of eight — put it — put it offensively, no children below the old age of eight should be engaged in any commercial occupation relating to the fishing.

    You say not?

    That’s what I mean by a police (Inaudible)

    John D. Calhoun:

    It just —

    Felix Frankfurter:

    — negative kind.

    John D. Calhoun:

    — by difficulty, does not come with understanding the police characterization.

    John D. Calhoun:

    It’s whether — whether that would be one of the fishing privileges that — or for fishing rights that was, in fact, reserved.

    Felix Frankfurter:

    Yes, but that’s what they say here that you shouldn’t — a fishing right, what is destructive of a defect, wouldn’t or a — pervasive state interest, if not one of those rights of reserve.

    And that language in terms, absolute, isn’t — haven’t got that absolute (Inaudible)

    What about my child labor case, you have (Inaudible) —

    John D. Calhoun:

    No, I would not.

    And here —

    Felix Frankfurter:

    And you say they couldn’t.

    You say the State of Alaska could?

    John D. Calhoun:

    I would say the State of Alaska.

    Felix Frankfurter:

    Couldn’t?

    John D. Calhoun:

    Could not.

    Felix Frankfurter:

    I understand that.

    And then by pride, they must say, I think they’re many offenses to this Court which said that state police power could not possibly reform from the State, something that really goes to the — to the deepest life interest of the State.

    In other words —

    John D. Calhoun:

    (Voice Overlap) —

    Felix Frankfurter:

    — you’d say that would be all left to the direction and control and protection of the Secretary of the Interior.

    John D. Calhoun:

    This Court has — has many times, I’m quite satisfied as it has said that concern must be shown for the police power.

    Has said the Congress is — the — the right of the Congress to operate in the field of Indian affairs is plenary.

    Felix Frankfurter:

    I know — I know those words, but is that what they mean?

    I know a word plenary.

    Does it really mean that a State is dislodged from passing something that’s fundamental to the life of people within itself?

    John D. Calhoun:

    If — if I cannot — if I cannot rely on the words as such, then I can say that so far as this case is — is concerned so far as —

    Felix Frankfurter:

    Just as might be.

    John D. Calhoun:

    — this case is concerned, it’s perfectly clear that this was what they had in mind and we can await the (Voice Overlap) –

    Felix Frankfurter:

    All right.

    That’s it.

    That’s all you have to do in this case.

    John D. Calhoun:

    Turn to the argument based on the fact that the Commerce power doesn’t reach communities such as Kake and Angoon and Metlakatla, because the — the commerce clause speaks of tribal Indians.

    Alaska says that all the — all appellants have pleaded is that they are Federal Indian corporations and then they conclude that this is not sufficient to invoke the operation of the commerce clause.

    Now, appellants were incorporated under Section 17 of the Indian Reorganization Act of 1934 as amended.

    John D. Calhoun:

    Under that section as amended, Secretary of the Interior — Interior has authorized a charter as the tribes stay in the group, Indians in Alaska having a common bond of occupation or association or residence within a well defined neighborhood community or rural district.

    The Secretary of the Interior has so acted with respect to each of the appellants.

    I do not understand that Alaska challenges the way the Secretary exercised that authority.

    In other words, proofs are properly chartered within the meaning of the statute.

    This Court has many times held that when Congress identifies a group of Indians as being worthy of this consideration of the commerce power, it’s a political question whether that entity exists and can — can be treated by the congressional power.

    And I — I put it that under the facts of this case, Congress has decided these are regulable Indian groups.

    William O. Douglas:

    But as I — as I read the Section 4 that refers to rights acquired and the rights of pardon.

    Here, it must come to the court that acquired under the White Act, isn’t that right?

    John D. Calhoun:

    The rights — the right to fish, Mr. Justice Douglas, the privilege of fishing, I think, were traps, I mean.

    William O. Douglas:

    Nobody, so far, has in my satisfaction, yet answered the argument of the District Judge that the White Act forbids this.

    The rights that — that are to establish traps come — that the Secretary of the Interior grants, derived from some power on his part and presumably, the White Act.

    John D. Calhoun:

    His right to regulate how Indians fish, derives from the White Act.

    He doesn’t — Indians have a vast range of means by which they can fish.

    He may regulate any of those means.

    Now, their — their privilege of fishing, their right to fish, comes as much from their charters.

    Their charter under — under the Indian Reorganization Act is fishing communities and we — the Government has — has purchased and holds in trust for them, canneries.

    Implicit in their — in their grouping is the need to — is the need to fish, and necessity to fish.

    That’s were the privilege comes from.

    Now, the right to regulate how they shall do it, that Congress has put in the Secretary of the Interior under the White Act.

    William O. Douglas:

    I didn’t agree with our Court’s construction as the White Act in the Hynes case, but the majority held that it couldn’t be given to a one tribe or a select group.

    That it had to apply generally, geographically, the area —

    John D. Calhoun:

    As I —

    William O. Douglas:

    — and this 1959 doesn’t do that, the 1959 regulation, does it?

    John D. Calhoun:

    It — it applies generally to all Indians and those are the only persons left under the regulation of the White Act.

    William O. Douglas:

    Well, that’s — that’s — maybe that’s the question.

    John D. Calhoun:

    Well, that — that is our construction and that’s the Government’s position with respect to the — to the White Act.

    The — the intendment of Section 4 was to remove federal jurisdiction with respect to non-native fishing.

    So that left the — the grip of the White Act only on — on native fishing and as to that, there is — there is no discrimination and so far as Hynes against Grimes is this concerned, all it held was that you could not apply the criminal — you cannot invoke the criminal provisions of the White Act in aid of exclusive fishing privileges that Congress had granted under other statutes.

    William O. Douglas:

    But there’s a part of the discussion in the Justice Reed’s opinion that — that this must be, perhaps there could be allowed, whites and Indians, everyone else in that area must be allowed to have traps.

    As it’s the regulation of the area.

    William O. Douglas:

    My difficulty, I don’t want to delay you, but my difficulty is seeing how that White Act becomes transformed to a regulatory scheme just for Indians, by reason of Section 4 of this amending act.

    John D. Calhoun:

    It’s — it’s certainly contemplated, we say, by — by Section 4 of the — of the White Act that there be federal control over Indian fishing.

    The Secretary of the Interior has looked to the White Act or his authority.

    To be sure, the — the power under which Congress would be operating in the area of the White Act would be power probably under the commerce clause and no longer under Article IV, the territorial power which it was — which it invoke in 1924 and enacted the White Act, that constitutional basis doubles transmuted by the Statehood Act.

    And that maybe enough to distinguish Hynes against Grimes there, because the — the constitutional underpinning is different — is different now.

    William O. Douglas:

    But the proviso there does read that every such regulation made by the Secretary of Commerce shall be a general application within the particular area that which it applies, can’t be anymore, under you argument, a general application in the particular area because it applies in a particular area, only the Indian.

    John D. Calhoun:

    Well, it is general as to all those to whom it applies.

    It’s — that — that is the position of the Government.

    It can’t be anymore general than — than over the group against whom it’s directed.

    Alaska — Alaska has asked for and received in the Congress by the grant of Statehood, right to control non-native fishing and it can’t be discrimination of the United States reserves to itself, regulation over native fishing.

    William O. Douglas:

    I could understand that, that’s where the White Act is written, but I have difficulty in so reading the White Act.

    John D. Calhoun:

    That is the position of the Government.

    The second constitutional argument of Alaska, involves the equal footing argument.

    We say here that the Coyle case makes perfectly plain that if Congress is exercising — is exercising powers that it clearly has under the Constitution, the equal footing doctrine doesn’t come in to operation and certainly the power of the Congress to regulate Indian affairs is — has long recognized as we’ve had — had cases and that’s all that this is a reservation of.

    The case of Ward against Race Horse, upon which Alaska relies, is easily distinguishable because in the Statehood Act under which Wyoming was admitted to the union, there was no exception in favor of the Federal Government or in favor of Indians and it was presumed by the Court that all powers were transferred to Wyoming and it could — it could apply it’s game laws to Indians who hunted off Indian reservations or Government property, that had been expressly reserved for their use.

    I see my time is expiring, I would like only to comment for a moment, if I may, on the difference that we have with the Secretary of the Interior.

    As we understand the position of the Secretary, it is that his regulatory authority under the White Act is — is locked in, petrified as — as it was at the moment of the admission of Alaska to Statehood.

    We don’t — so that if there had nine traps prior to admission, they — they may have only nine hours.

    It’s — it’s a little uncertain whether he’s going up to 21, stay at nine though.

    We say that he has Congress’ commanded him to exercise as much discretion as he exercised before.

    Nine traps are enough, then he shall issue nine authorizations, but if there — if more or — or fewer are needed, then he must — he must use his discretion there.

    William J. Brennan, Jr.:

    Well, may he — may he exercise discretion not to authorize the use of any fish traps?

    John D. Calhoun:

    If he follows the criteria that Congress set for him in the White Act, and that’s the regulatory act, and in the pursuit of his expert judgment in any fishing season, there should be no traps —

    William J. Brennan, Jr.:

    Why is that?

    John D. Calhoun:

    There should be no traps, but he applies the — the standards of conservation in enforcing the law.

    Earl Warren:

    Mr. Calhoun, should — or need we reach that — that question in this case?

    John D. Calhoun:

    Indeed not, Your Honor.

    Earl Warren:

    Thank you.

    Mr. Rader.

    John L. Rader:

    Mr. Chief Justice, may it please the Court.

    John L. Rader:

    Alaska was one of the few territories which were discriminated against in the control of its fishing game as a territory.

    The Organic Act of 1912 prohibited the territorial legislature from enacting any legislation whatsoever concerning the fisheries.

    Consequently, Alaska never challenged anything that the Federal Government did as a territory because it was expressly withheld from us into the plenary power of the United States to provide for the Government of its territories and possessions.

    In Alaska, the salmon industry, the commercial salmon industry and we’re not talking about subsistence here and there’s a great difference.

    The commercial salmon industry, according to our Appendix 2, in Southeastern Alaska, and that is the pan handle, what we call the pan handle, the little strip of land which comes down along the coast of Canada, landlocked Canada actually in that area.

    85.9% of the natural resource products of the region are the commercial fishery, 89 — 85.9.

    The commercial fishery, under the Federal Government, it’s probably one of the wealthiest, most fantastic fisheries in the world fell from a peak productivity in 1918 of seven million cases to less than two million cases.

    The fishery is practically destroyed.

    There is enough seed left to rebuild it and the people that live in Alaska, regardless of how it happened in their federal management that this fishery was practically destroyed.

    The facts are — the statistics are that that is what has happened.

    William O. Douglas:

    Well, the Indians weren’t the ones that destroyed that.

    John L. Rader:

    Absolutely not, Your Honor.

    Absolutely not.

    It was open to the exploitation of all, every citizen of the United States.

    The Indians are peculiarly relied upon the fishery.

    There’s no question about that either, aboriginals, they are reliant.

    And today, they are relied heavily upon the fishery.

    They are fishermen.

    In fact, 42% of the relative Alaskan fishermen are Indian, 42%.

    That’s 42% of an industry which produces 85% of the total gross natural resource product of the region.

    Earl Warren:

    That — that includes the Indian workman of the big — of the big company (Voice Overlap) —

    John L. Rader:

    That includes — we — we’ve took the figures from the census —

    Earl Warren:

    Yes.

    John L. Rader:

    — and it merely broke them out as being resident Alaskans employed in the industry.

    Earl Warren:

    Yes.

    John L. Rader:

    They — they work at times as employees in canneries.

    They — they — some owned their own boats.

    There are mixed white crews and Indian crews, but the census of it to break down on a basis of race as to the occupation in the fishery.

    That was a 1950 census.

    The people of Alaska and this movement was — is not special interest of Alaska.

    John L. Rader:

    This movement was lead by the Indians as having a very great reliance on this resource, a movement to abolish fish traps.

    The mayor of Metlakatla, in this case, states in an affidavit that we wanted fish traps abolished to conserve the salmon supply.

    Now, we don’t have to argue too much about conservation here.

    Because appellant, Metlakatla, concedes that this is a conservation issue.

    We need not to argue it too much, but we can make the same observation that the Solicitor General did in the case of the United States versus Winans, concerning the fish wheels on the Columbia River and that is this, that they take tons of fish that not only is the device depleting the industry, the resource, but threatens to destroy it.

    No one knew this better than the native residence, our native citizens, if you please, of Alaska.

    And they lead the movement before anyone else, the Alaska Native Brotherhood, for the abolition of this device.

    In 1948, there was a referendum.

    We cite (Inaudible) in our book.

    It’s been recognized as an authority on this, there’s no question as to the historical accuracy of what (Inaudible) relates Angoon, for instance, if — if my memory serves me right, voted 120 for abolition of fish traps for seven, to retain fish craps.

    This is the secret balloting.

    A 120 to abolish fish traps, that was 1948, that was the same year that these people bought fish traps.

    Actually, it was a benevolent desire of the Department of Interior to assist these people economically.

    Earl Warren:

    But does that — did that refer just to their right to do it, or was that — whether that have to do with fish traps all over the — all over the country?

    John L. Rader:

    Mr. Chief Justice, we’ve always assumed up there that we were equals regardless of race.

    These people were not on a reservation, they were as much a part of us as anyone else.

    It was a general application, the absolute abolition of fish traps.

    Earl Warren:

    Yes.

    John L. Rader:

    This Court observed in any case (Inaudible) the efficiency of the seine.

    Refers to the — a — a certain type of seine.

    And that made it objectionable from a conservation nature.

    In Patsone versus Pennsylvania, this Court determined that it wouldn’t argue with the State as to as conservation methods, unless in it was so clearly something else as to perhaps offend the good sense of anyone.

    I don’t think that that case is presented at all today.

    Earl Warren:

    Is — is there any consensus on whether traps are — are more destructive to fish life than seines?

    John L. Rader:

    There’s an argument —

    Earl Warren:

    I don’t know.

    John L. Rader:

    — certainly, the Federal Government, in its control of the fishery, has consistently maintained that a dead fish — or dead fish, now, it doesn’t make any difference when you catch it with a trap or with a net.

    The fact the traps are more efficient, may — it may cost $40,000 to $50,000 to install one, but they’re — they’re more efficient because they fish 24 hours a day.

    A man with nets is limited by his physical — by physical exhaustion.

    He’s limited by the weather.

    John L. Rader:

    He’s limited by his — his necessity to reach his supply base.

    It’s the marine way of life in small boats and they’re limited, compared to a trap and a trap a highly efficient device.

    It’s an under water throughout, that extends out into the — on what we consider to be our inland waters and our tidelands and incidentally, our fish and game, a migratory resource that is not like corn and — and raised on the 60 acres on which these people claim Metlakatla.

    It’s a bird just as sure as in Missouri versus Holland, that flies though their reservation and out.

    And it must be conserved, both before it enters it and after, at least.

    But the fish trap issue, for the same reason that an automatic shotgun with 20 shells, is not permitted for game hunting.

    It is efficient.

    It’s tremendously efficient.

    It is so efficient that we believe that has destroyed the fishery.

    And Alaska Native Brotherhood had observed that for years and years and years.

    I think that it’s important to understand not only our 42% of our fishermen natives, but to understand that perhaps 12% to 15% to 18% of our population are of native blood.

    This would be clearly native blood.

    I don’t even call it a 64th or what.

    We all speak English up there and we have no difficulties in that matter.

    At least it would be very unusual.

    I’ve never run up against myself.

    But we have 42% of our fishermen.

    We have 12% to 15% of our population that are of Indian blood or would be clearly Indian.

    We have 15% of our State legislature who are Indians.

    We have, the President of the State Senate, who’s an Eskimo and just as much, if this Court rules that Kake and Angoon are exempted from the laws of this State, then there is no reason why we will not lose the President of our Senate, who is a full-blooded Eskimo and further removed from civilization than these people.

    We have — these people not only serve in our legislature, but they serve with distinction.

    These — we — we have the — the representative of Frank Peratrovich.

    Now, these are common facts in Alaska.

    It’s known.

    This is the climate out of which this litigation arises.

    Senator Frank Peratrovich, a full-blooded Indian from Klawock.

    Klawock is organized as one of these corporations just exactly as appellants are here.

    Senator Peratrovich was elected from the whole of the Southeastern district.

    That district is 78% white and Senator Peratrovich is recognized and was elected.

    He had to be elected by the whites in the area, because he was a man regardless of his race.

    William O. Douglas:

    Well, whatever we decide here, won’t affect that or —

    John L. Rader:

    Well, I think it will.

    I think you’ll have tremendous effect on it, because we cannot send — it — I have no right to predict and I can’t predict, but it would not make sense for the people of Alaska to elect to their State legislature and make half of their fishing — thee board — Fish and Game Board, Indians, if the — if the laws to be passed for the State toward apply the Indians.

    Earl Warren:

    Mr. Rader, what — could you tell us what — about what percentage of your — your annual pack of — of salmon, the activities of these Indians would represent, is it large or is a small?

    John L. Rader:

    It would be rather small on an overall – overall (Voice Overlap) —

    Earl Warren:

    Board – well what would you say.

    John L. Rader:

    The board traps, I wouldn’t take issue at all with the — with the statement at Metlakatla that would represent probably less than 1%, that is for traps.

    Probably, now, this is of the total of Alaska.

    This is not Southeastern Alaska, but at the total of Alaska pack, probably the 21 sites might amount to 10% of the Southeastern pack and 5% of the total Alaskan pack.

    But this is the problem, there is no way to limit this case to these fish traps, because as someone observed earlier, where the regulation’s general?

    Yes.

    There were 200 fish trap sites in Alaska or thereabouts open to every person, every citizen of the United States.

    Felix Frankfurter:

    And would all those sites be covered by the reservation of Section 4 as construed by the Government?

    John L. Rader:

    Absolutely.

    There’s no reason for them, because these appellants –-

    Felix Frankfurter:

    Well, I mean are all these — are all these — would they all come in under the three categories of natives who’s fishing rights are protected?

    John L. Rader:

    I don’t know what those categories are.

    Felix Frankfurter:

    Well, they — they’re Eskimos, Indians, and Aleuts.

    John L. Rader:

    Oh.

    Well, I’m sorry I missed the thread of Your Honor’s question.

    Felix Frankfurter:

    Well, you said there were 260.

    John L. Rader:

    Yes.

    Felix Frankfurter:

    What I want know is whether — what I want to know is this, how many such communities are there in the whole of Alaska as to which fishing rights are reserved as they’re claimed to be reserved by the Government in regard including these two in (Voice Overlap) —

    John L. Rader:

    But there are 59 Indian corporations that are similar to this.

    Felix Frankfurter:

    Then, if you tested the question, would be extended as to what the ratio of the output of a possible 59, the total would be –-

    John L. Rader:

    Well — well, that’s true, because –-

    Felix Frankfurter:

    That would be considerable, that wouldn’t it?

    John L. Rader:

    Oh, yes.

    It’s the fishery.

    William O. Douglas:

    The only regulation involved here is a (Inaudible) the 1959 one isn’t it?

    John L. Rader:

    That’s right, Your Honor.

    William O. Douglas:

    It’s on page — page 76 of your brief.

    John L. Rader:

    Yes.

    But the point is this –-

    Felix Frankfurter:

    Is that — does that apply to these two communities?

    John L. Rader:

    Yes.

    That is incidentally, that is a general regulation.

    William O. Douglas:

    Well the Secretary —

    John L. Rader:

    (Voice Overlap) —

    William O. Douglas:

    — that the Secretary hasn’t suggested has he that he would authorize the use of fish traps of any locations except these three?

    John L. Rader:

    Well, he’d — yes.

    He suggested it is going to expand up to 21 fish trap sites.

    We have 11.

    William O. Douglas:

    (Voice Overlap) 21 or are they identified with these three communities?

    John L. Rader:

    Yes, they are.

    William O. Douglas:

    But beyond those 21?

    John L. Rader:

    He has not indicated it.

    William O. Douglas:

    Well, do you think he — would he have encourage to?

    John L. Rader:

    If he has the authority to operate to — now, Metlakatla’s different because there’s a reservation there.

    And we can argue about the reservation, but if he has the right on taking Angoon, who incidentally are incorporated cities under Alaskan law and indecently to whom the Alaskan law has always applied, marital, criminal, property and everything else as far as we know, if he can do it for these three communities on the basis that they are of Indian blood, then he can do it with all the rest of the Indian Communities too.

    Because these three communities on these fish trap sites, Your Honor, had no more right to this fish trap sites that they are fishing now, then did I or you and in the year 1958, the last year that they fished under the general regulations.

    I could have owned the Point (Inaudible) as fish trap site.

    All I had to do was go out and take it.

    I didn’t have $50,000.

    I didn’t have the (Inaudible) I didn’t have the — the tempers to make the fish trap, but I have that right.

    Therefore, these people did not have a right to take over from year to year.

    It was a race every spring, if you want to —

    William J. Brennan, Jr.:

    (Voice Overlap) correctly then that if — your view is that if this maybe authorized for Kake and Angoon, it may also be authorized for the trap sites related to or connected with at least 57 other Indian —

    John L. Rader:

    Those communities have never used traps, but those communities had the right to use traps under the old law.

    William O. Douglas:

    Up to 1959.

    John L. Rader:

    Up — up until we became a State.

    They had the right as did every citizen, to use traps.

    They never exercised that right.

    Incidentally, taking Angoon, they would exert — exercise any rights at all in regard to fish traps from 1948 to 1950 respectively.

    This isn’t a novel longstandard thing.

    Felix Frankfurter:

    As I understood the Government as I understood him to say, Angoon in behalf of the United States, he asserted the right to make similar regulations as to other sites unless you’ve been seen by the Secretary of Interior that traps would be deleterious to — to or that the traps should be allowed.

    Isn’t that right?

    John L. Rader:

    Right, Your Honor.

    Felix Frankfurter:

    So that this is a general problem of potential power anyhow.

    John L. Rader:

    Certainly, it is.

    You can’t stop it.

    You — you can do this.

    You can limit it as to Metlakatla, because there is a reservation there.

    I don’t know if it’s an Indian reservation or not.

    There, indecently, the information that the state laws have just recently applied to Metlakatla is a great variance with the opinions of the District Judges, the federal district judges in Alaska, in the case of United States-Booth, the District Judges says, “We have always assumed that Metlakatla State laws applied — excuse me, territorial laws then applied to Metlakatla, this reservation.”

    Felix Frankfurter:

    But Mr. Calhoun, although said, that it doesn’t have to be a regulation in the technical standard.

    That the Government — the federal or the Indian in control of the Federal Government and reserve right to — by the Federal Government according to his argument, applied to Indians.

    They don’t have to be organizing a reservation.

    John L. Rader:

    Well, there must be a reasonable limit to that because — because race — race alone is not sufficient, I submit under Indian Commerce Clause.

    Felix Frankfurter:

    No.

    But a man may have a status of Indian without living on a reservation.

    Earl Warren:

    Well,recess now.

    Mr. —